UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

VERSATILE HELICOPTERS, 

Plaintiff, Case No. 2:10-cv-1110

JUDGE GREGORY L. FROST

v. Magistrate Judge E.A. Preston Deavers

CITY OF COLUMBUS, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings:

(1) a motion for summary judgment (ECF No. 60) filed by Defendant the City of

Columbus (“Columbus”)1; a memorandum in opposition (ECF No. 63) filed by Plaintiff,

Versatile Helicopters, Inc. (“Versatile”); and a reply memorandum (ECF No. 65) filed by

1

 The motion indicates that it was filed by the Columbus and the Columbus Police

Division (“the Police”). (ECF No. 60.) The First Amended Complaint names the latter entity as

the Columbus Police Department. (ECF No. 29.) The difference is ultimately of no importance

because as a result of the briefing, the Police is herein dropped as a party to this litigation.

 Columbus and the Police argue in their summary judgment briefing that the Police is not

capable of being sued because it is merely a division of Columbus. In response, Versatile states

in its briefing that because Columbus admits that it and not the Police is properly named in this

action, Versatile “would dismiss its claims against Defendant Columbus Police Department.” 

(ECF No. 63, at 1 n.1.) Columbus and the Police do not respond to this statement in the reply

memorandum.

Versatile’s representation in a footnote is not a separate motion to drop the Police from

this litigation pursuant to Federal Rule of Civil Procedure 21. But Versatile, Columbus, and the

Police all agree that the Police should not be a party to this litigation. Accordingly, liberally

construing Versatile’s briefing and recognizing what the parties seek to effectuate, the Court

accepts the footnote representation as a Rule 21 motion, GRANTS said motion, and drops the

Police as a party to this action.

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Columbus and the Police; and

(2) a motion for summary judgment (ECF No. 62) filed by Defendant Helicopter MinitMen, Inc. (“Minit-Men”), a memorandum in opposition (ECF No. 64) filed by Versatile, and a

reply memorandum (ECF No. 66) filed by Minit-Men.

For the reasons that follow, this Court drops the Police from this litigation, GRANTS IN

PART and DENIES IN PART the motion for summary judgment (ECF No. 60) filed by

Columbus, and GRANTS the motion for summary judgment (ECF No. 62) filed by Minit-Men.

I. Background

Columbus previously entered into a contract with Minit-Men that called for Minit-Men to

inspect, service, and maintain helicopters belonging to the Police. One helicopter in the police

department fleet was a McDonnell Douglas Model 369E, Series 5000-E Helicopter, with the

aircraft serial number 0540E and bearing United States identification number N553CR. In April

2008, Columbus offered this helicopter for sale.

Versatile learned through a broker that the helicopter was for sale and that Minit-Men

was responsible for performing a 100-hour annual inspection on the helicopter before its delivery

to a buyer. Minit-Men purportedly performed the inspection, but soon after Versatile

subsequently took delivery of the helicopter, Versatile allegedly discovered that the helicopter

had structural cracks, time-expired components, loose driving coupling components, and other

significant deficiencies.

Versatile filed the instant action against Columbus, the Police, and Minit-Men. In its

First Amended Complaint, Versatile asserts the following claims for relief against the remaining

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parties: breach of contract against Columbus in Count I, breach of express and implied

warranties in violation of Ohio’s Uniform Commercial Code statutes against Columbus in Count

II, and negligent or intentional misrepresentation against Minit-Men and Columbus in Count III.2

(ECF No. 29 ¶¶ 43-61.) Defendants have filed motions for summary judgment on all of these

claims. (ECF Nos. 60, 62.) The parties have completed briefing on the motions, which are ripe

for disposition. 

II. Discussion

A. Standard Involved

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party

who has the burden of proof at trial fails to make a showing sufficient to establish the existence

of an element that is essential to that party’s case. See Muncie Power Prods., Inc. v. United

Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986)). 

In viewing the evidence, the Court must draw all reasonable inferences in favor of the

nonmoving party, which must set forth specific facts showing that there is a genuine issue of

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a 

2

 Although the amended complaint also contains a Count IV, that count simply sets forth

asserted damages and therefore does not constitute a claim for relief. (ECF No. 29 ¶¶ 62-65.)

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verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided 

that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,

477 U.S. at 251-52).

B. Columbus (ECF No. 60)

This is an odd case. The oddity arises not only from the manner in which the parties have

litigated the action generally, but also from the peculiar way they have briefed the issues

specifically.

The irregularities the Court recognizes primarily manifest themselves in regard to the

first two claims in the amended complaint. As noted, Count I is a breach of contract claim in

which Versatile asserts that because the helicopter was not in the condition it was represented to

be, Columbus breached the sales contract. Count II is a Uniform Commercial Code claim under

Ohio statutes in which Versatile, as the buyer, asserts that Columbus, as the seller, violated

numerous express and implied warranties recognized by state law. Columbus seeks

summary judgment on both claims. 

In regard to Count I, Columbus argues that it is entitled to judgment because it was not a

party to the sales contract and therefore cannot be held to have breached that contract. Rather,

Columbus argues, the sales contract was between Versatile and Air Flite, Inc. (“Air Flite”), the

broker that Columbus utilized to sell the helicopter. Because Versatile has not asserted a claim

against Air Flite as the agent of Columbus, the city then explains, Versatile cannot proceed

against Columbus as the principal for Air Flite’s acts. In making these arguments, Columbus

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repeatedly relies upon Ohio case law related to agency and contractual claims. 

Addressing the Uniform Commercial Code claim in Count II, Columbus then argues that

because no contract between Columbus and Versatile existed, Columbus was not a seller within

the meaning of the Ohio statutory scheme and there was no sale under Ohio’s statutes. 

Columbus fails to cite any authority for its contentions.

In an attempt to evade summary judgment, Versatile counters in its memorandum in

opposition that Columbus has not presented the Court with the full context of the sale that

occurred. The Court will summarize some of the evidence upon which Versatile relies below,

but the point is that Versatile argues that because the sales agreement lacks a merger clause and

in light of Ohio law, the sale actually reaches beyond the four corners of the sales agreement and

establishes that Columbus was the actual seller and that a sale between Columbus and Versatile

took place. 

Now is where the most prominent oddity in this case arises. As Columbus correctly

points out in its reply memorandum, the Versatile-Air Flite sales agreement contains the

following provision: 

Governing Law: Laws of the State of Oklahoma shall govern this agreement and

this Transaction and the parties further agree that venue for any matter relating to this

agreement shall be in Pottawatomie County.

(ECF No. 60-5, at 2.) Relying on this provision, Columbus proceeds in its reply memorandum to

assert that if the Court rejects its premise that no contract existed between Versatile and

Columbus, then the above-cited contract provision controls. According to Columbus, this means

that “the transaction is not governed by the laws of Ohio, but rather the laws of Oklahoma.” 

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(ECF No. 65, at 3.) Columbus also contends that “[i]n light of the fact that Plaintiff’s whole

response to this Defendant’s Motion is based upon ‘Ohio law and the Ohio Revised Code,’

Plaintiff has offered no meaningful, [sic] response to the Motion for Summary Judgment and the

Court must grant the Motion as a matter of law, since there is, in reality, no response.” (Id. at 2.)

Columbus’ invocation of the foregoing contract clause necessitates making four points. 

First, the Court notes as a threshold matter that, despite the forum selection clause quoted

above, there is no question as to whether venue is proper. Columbus raised the issue of improper

venue in its answer to the original complaint. (ECF No. 10 ¶ 25.) The parties’ subsequent

February 11, 2011 Rule 26(f) Report provided that “VENUE IF CONTESTED BY THE CITY

OF COLUMBUS WILL BE CONTESTED WITHIN 30 DAYS BY MOTION.” (ECF No. 16, at

1.) The Magistrate Judge’s March 10, 2011 Preliminary Pretrial Order then provided: “There are

no contested issues involving personal jurisdiction, subject matter jurisdiction, or venue. Any

motion addressing personal jurisdiction, subject matter jurisdiction, or venue, if any, must be

filed on or before APRIL 8, 2011.” (ECF No. 21, at 2.) Columbus never challenged venue by

motion. Instead, when Columbus filed its May 27, 2011 answer to the amended complaint, the

city did not raise the venue issue. (ECF No. 32.) Columbus has thus elected to forfeit any

possible venue challenge. See Estate of Popovich v. Sony Music Entm’t, No. 1:11 CV 2052,

2012 WL 892531, at *2 (N.D. Ohio Mar. 14, 2012) (explaining when a party waives a forum

selection clause). 

Second, Columbus’ contention that “the Court must grant the Motion [for summary

judgment] as a matter of law, since there is, in reality, no response” is simply wrong. (ECF No.

65, at 2.) A failure to respond to a summary judgment motion does not invariably entitle the

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movant to obtaining success on that motion. That is not how summary judgment works. Rather,

as Rule 56 makes clear, “[t]he court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a) (emphasis added). Columbus can obtain summary

judgment only if the law says it should, not simply because Versatile has filed a memorandum in

opposition that the city deems non-responsive to the potentially dispositive motion. Moreover,

given that the summary judgment motion only addresses Ohio claims and relies upon Ohio

authority, the contention that the memorandum in opposition constitutes no response because it

is based on Ohio law is not logically sound. 

Third, Columbus’ reply memorandum invocation of Oklahoma law fails to present a

permissible argument for summary judgment. As noted in the preceding paragraph, Columbus

sought judgment in its summary judgment motion on Count I and II by basing its argument on

authority construing Ohio law. Columbus then raised for the first time the Oklahoma issue as an

alternative ground for judgment in its reply memorandum. But Columbus is confined to those

grounds raised in its motion and initial memorandum in support in its attempt to obtain summary

judgment. This Court has explained time and again that “a reply brief is not the proper place to

raise an issue for the first time.” United Tel. Co. of Ohio v. Ameritech Servs., Inc., No.

2:10–cv249, 2011 WL 53462, at *3 n. 2 (S.D. Ohio Jan.7, 2011). Consequently, the Court need

not and will not consider Columbus’ new or newly recast arguments. See Culy Constr. &

Excavating, Inc. v. Laney Directional Drilling Co., No. 2:12-cv-4, 2012 WL 2071804, at *4

(S.D. Ohio June 8, 2012) (refraining from considering argument first raised in a reply

memorandum); Cooey v. Strickland, No. 2:04–cv–1156, 2010 WL 3212079, at *12 (S.D. Ohio

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Aug.12, 2010) (foregoing consideration of argument improperly raised for first time in reply

memorandum); Tolstih v. L.G. Elecs., U.S.A., Inc., No. 2:07–cv–582, 2009 WL 3241665, 6 (S.D.

Ohio Oct.2, 2009) (refusing to consider an argument improperly raised for the first time in a

reply memorandum); Piergallini v. Alfa Leisure, Inc., No. 2:06–cv–0555, 2008 WL 687167, at

*5 (S.D. Ohio Mar.11, 2008) (declining to address an argument improperly raised for the first

time in a reply memorandum); Ferron v. Search Cactus, L.L.C., No. 2:06–cv–327, 2007 WL

1792332, at *4 (S.D. Ohio June 19, 2007) (rejecting an argument improperly raised for the first

time in a reply memorandum). Columbus’ belated Oklahoma argument cannot serve as a

rationale for the city obtaining summary judgment. 

Fourth, the filings fail to address effectively any genuine dispute of material facts that

could affect what law is involved, which in turn would define the relationships of the parties and

the scope of the sales contract. Rarely does this Court encounter a case in which it is unclear to

the parties at the summary judgment stage what state’s law applies. Any such issue here is

problematic because if Ohio agency law controls and a Versatile-Columbus contract exists here,

then Columbus may be correct in arguing that Oklahoma law applies to the claims.3

 What this

3

 The Court uses the term claims because it appears that Columbus’ Oklahoma theory

would include at least the first two claims. But the extent to which Columbus alternatively

posits that only Oklahoma law can control is unclear. Columbus states in its briefing that “if one

adopts Plaintiff’s theory that the Aircraft Purchase Agreement did somehow include the City of

Columbus, then it is respectfully submitted that Plaintiff’s claim must still fail.” (ECF No. 65, at

1 (emphasis added).) Use of the singular “claim” as opposed to “claims” suggests that

Columbus is arguing that Oklahoma law would apply only to the breach of contract claim,

despite the sales contract saying Oklahoma law applies to the written sales agreement itself and

the transaction (i.e., the sale), which would mean that Ohio law would apply to the Uniform

Commercial Code claim related to the sale and the negligent misrepresentation claim related to

representation made as part of that sale. But in then arguing that because Versatile’s

memorandum in opposition relied only on Ohio law it fails to constitute a response to the motion

for summary judgment, Columbus appears to suggest that Oklahoma law must apply to all of the

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would mean is that Versatile has asserted claims under the wrong state’s law in this litigation and

that Columbus’ summary judgment motion relies on Ohio law to attack Ohio claims when

Oklahoma claims should have been brought. 

Who is a party to the sales contract depends in part on the facts of the Columbus-Air Flite

relationship, what state’s law governs that relationship, and what documents constitute the sales

contract at issue here. But the parties have not presented the facts or the issues to this Court in

an effective manner.

Evidence accompanying the summary judgment motion indicates that Columbus

contracted with Air Flite for Air Flite to serve as the city’s agent in selling the helicopter at issue. 

That contract, designated a “Marketing Agreement,” appointed Air Flite the “exclusive

marketing agent” of Columbus, which in turn was described as the owner of the helicopter. 

(ECF No. 60-2.) The agreement stated that Air Flite would “exclusively manage” the helicopter

sale and directed Air Flite to represent the helicopter’s condition as “airworthy” with “systems

functioning normally” and “current on maintenance.” (Id.) The agreement also provided that

“[a]s Owner’s agent, Air shall have no authority to accept or bind Owner to any sale. 

Acceptance of any offer shall be in Owner’s sole discretion.” (Id.) An August 1, 2008

Aircraft Bill of Sale submitted as additional summary judgment evidence indicates that, on the

date indicated, Columbus sold the helicopter to Air Flite for the sum of $1.00. (ECF No. 60-3, at

1.) A second Aircraft Bill of Sale submitted indicates that on April 28, 2009, Air Flite sold the

helicopter to Versatile for the sum of $1.00. (ECF No. 60-3, at 3.) This second bill of sale is

apparently an outgrowth of the April 2009 Aircraft Purchase Agreement signed by Versatile and

claims. (Id. at 2.) There should be no such ambiguity in what Columbus is arguing.

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Air Flite, which indicated a purchase price of $510,000. (ECF No. 60-5.) In an affidavit from

Columbus’ Director for the Department of Public Safety, the affiant identifies these documents

and explains that they reflect that Air Flite was the seller of the helicopter and that Versatile

never paid Columbus any money. He states that Air Flite received the $510,000 from Versatile,

deducted its commission, and then transferred the remaining money to Columbus. (ECF No. 60-

1.)

Evidence submitted that relates to Versatile’s memorandum in opposition adds a few new

wrinkles to Columbus’ account of Air Flite solely owning and selling the helicopter.4 In his

deposition, Air Flite’s president stated that Air Flite did not own the helicopter. (ECF No. 61-3,

at 6 (White Depo. at 21).) He explained that the two bill of sales mentioned above were only

filed on the day of the actual sale, back to back, so that Columbus retained ownership of the

helicopter right until the sale to Versatile was effectuated. (ECF No. 61-3, at 6-7 (White Depo.

at 21-23).) He also explained that Air Flite marketed the helicopter’s condition based on

representations from Minit-Men and Columbus. (ECF No. 61-3, at 6-7 (White Depo. at 53-54).) 

Versatile’s president testified in his deposition that he understood that Columbus owned the

helicopter, not Air Flite, and that Air Flite was simply a broker. (ECF No. 61-1, at 25 (Baker

Depo. at 99-100, 132).)

Numerous documents are potentially relevant here beyond merely the sales agreement, as

well as the parties’ understanding of their roles. None of this leaves the Court with undisputed

facts pointing to judgment. What this Court is left with is (1) a marketing agreement that

4

 Versatile directs this Court to deposition exhibits, but Versatile failed to file these

exhibits with the Court. (ECF No. 63, at 4.) 

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appoints Air Flite Columbus’ agent, but that had expired by the time the sale took place here; (2)

a sales contract that lacks a merger clause and directs the parties to Oklahoma law; (3) a motion

for summary judgment that relies on Ohio law to attack Ohio claims; (4) no choice of law

analysis briefing; (5) perhaps no meaningful briefing on the relevant agency and contract law

implicated by the facts and relationships involved; and (6) facts that suggest that due to the

agency involved and the parties’ conduct, Columbus was a party to the sales contract and there

was consequently a sale subject to a state’s Uniform Commercial Code. This in turn leaves

Columbus with no summary judgment on its “no contract” and “no sale” theories. 

One additional point is necessary in regard to the foregoing claims, although it is not as

strongly tied to the Oklahoma contract clause. The Court notes that Columbus mentions in its

briefing on Count I and II that the sales contract provided that the helicopter was sold in “as is

condition” with no warranties. This is a correct statement regarding the sales contract, which

provides: “At the time of delivery Purchaser agrees to accept the Aircraft in an “as is where is”

condition. (NO WARRANTY).” (ECF No. 60-5, at 2.) Columbus presents little else on that

point, however, despite its obligation under the Local Civil Rules to divulge to this Court not

only its reasoning for an asserted entitlement to judgment but also the support for its argument. 

See S. D. Ohio Civ. R. 7.2(a)(1) (“All Motions and applications tendered for filing shall be

accompanied by a memorandum in support thereof which shall be a brief statement of the

grounds, with citation of authorities relied upon.” (emphasis added)). 

Such an approach is hardly dispositive in light of the obligations of counsel and this

Court’s role:

[T]he Court is not obligated to guess at what a party’s argument is, guess at what an

opposing argument is, and then rule on the merits of arguments that the parties have

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not actually presented. Cooey v. Kasich, Nos. 2:04–cv–1156, 2:09–cv–242,

2:09–cv–823, & 2:10–cv–27, 2011 WL 5326141, at *12 n. 5 (S.D. Ohio Nov. 4,

2011) (cautioning counsel that “given that this Court is in the business of resolving

disputes and not charged with fashioning arguments from nearly random asides,

some might argue that informing the Court of the specific arguments asserted and

providing supporting authority for the positions taken would be a more prudent

litigation strategy”); Cooey v. Strickland, No. 2:04–cv–1156, 2009 WL 4842393, at

*99 (S.D. Ohio Dec. 7, 2009) (explaining that “this Court cannot fashion an

argument that has not been presented to it and then consider that argument as the

basis for [injunctive relief]”); Lyon v. Yellow Transp., Inc., No. 2:08–cv–464, 2009

WL 1604807, at *15 (S.D. Ohio June 8, 2009) (“This Court is in the business of

resolving the legal arguments presented to it, not in creating a party's inferred

argument for him and then passing judgment on it.”).

Tackett v. M&G Polymers USA, LLC, No. 2:07-cv-126, 2012 WL 553010, at *23 (S.D. Ohio

Feb. 21, 2012). Consequently, although Columbus suggests that the “as is” language is an

additional reason for granting summary judgment, the Court declines to enter judgment for

Columbus on such a wholly undeveloped, ill-briefed aside. 

The Court therefore DENIES the motion for summary judgment on Counts I and II. 

This leaves for discussion Columbus’ attack on Count III of the amended complaint,

which presents a combined state law claim for negligent or intentional misrepresentation. The

amended complaint does not expressly indicate what state’s law Versatile relies upon in this

claim, although context of course points to Ohio.5 

The crux of Count III is that Minit-Men misrepresented that the helicopter was

airworthy–that it had been maintained properly and that it satisfied all required inspections and

maintenance needs. Versatile asserts that Minit-Men was acting as the agent of Columbus and

5

 Oklahoma does not recognize intentional misrepresentation as a distinct claim, but as

an element of a fraud claim. See Dobbs v. Weth Pharm., No. CIV-04-1762-F, 2012 WL 975733,

at *3 (W.D. Okl. Mar. 16, 2012); Nichol v. Pray, Walker, Jackman, Williamsn & Marler, A

Prof’l Corp., 144 P.3d 907, 910 (Okl. Civ. App. Div. 3 2006). 

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that Minit-Men’s negligent or intentional conduct is imputed to Columbus.

Columbus disagrees. The city argues that it is entitled to summary judgment because

Minit-Men was an independent contractor, which means that there was no agency relationship

between Minit-Men and Columbus and that Columbus cannot be liable for Minit-Men’s conduct. 

Versatile does not address Count III in its memorandum in opposition. Instead, Versatile

offers in its briefing only that it “respectfully urges the Court to deny Defendant City of

Columbus’ Motion for Summary Judgment and respectfully urges the Court to allow Plaintiff’s

breach of contract and UCC claims to go to a jury.” (ECF No. 63, at 8.) It is unclear whether

Versatile simply inadvertently neglected to include a response on Count III or whether

Versatile’s silence on the third claim is an implicit concession to Columbus’ argument.

Under Ohio law, an employer is not liable for the actions of an independent contractor,

subject to exceptions that Versatile does not argue are applicable here.6

 See Giles v. Sun Pipe

Line Co., 833 F.2d 1012, 1987 WL 39079, at *4 (6th Cir. 1987) (unpublished table decision);

Byrd v. Law Offices of John D. Clunk Co., LPA, No. 1:09-cv-076, 2010 WL 816932, at *8 (S.D.

Ohio Mar. 8, 2010); CitiMortgage, Inc. v. Robson, No. 2011-CA-0017, 2011 WL 4067324, at *2

(Ohio 5th Dist. Ct. App. Sept. 13, 2011); Ford Motor Credit Co. v. Ryan, 189 Ohio App. 3d 560,

939 N.E.2d 891, 925-26 (Ohio 10th Dist. Ct. App. 2010). Thus, Columbus has presented this

Court with a general rule supporting the proposition that, because Minit-Men was an

independent contractor, its acts should not be imputed to the city. Versatile has failed to address

6

 In the unlikely event that should have been an Oklahoma law claim, this Court notes

that Oklahoma law contains the same rule. See Bouziden v. Alfalfa Elec. Co-op., Inc., 16 P.3d

450, 455 (Okl. 2000); see also Young v. Bob Howard Auto., Inc., 52 P.3d 1045, 1050 (Okl. Civ.

App. Div. 4 2002). 

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this argument. There is no apparent dispute of material facts or law to counter the summary

judgment motion. Accordingly, Columbus is entitled to summary judgment on Count III. The

Court therefore GRANTS the motion for summary judgment on Count III. 

C. Minit-Men (ECF No. 62)

Minit-Men, the remaining party named in Count III of the amended complaint, also seeks

summary judgment on Versatile’s claim for negligent or intentional misrepresentation. The

Sixth Circuit has explained that Ohio law defines a claim for negligent misrepresentation as

follows:

[O]ne who, in the course of his business, profession or employment, or in any other

transaction in which he has a pecuniary interest, supplies false information for the

guidance of others in their business transactions, is subject to liability for pecuniary

loss caused to them by their justifiable reliance upon the information, if he fails to

exercise reasonable care or competence in obtaining or communicating the

information.

Andersons, Inc. v. Consol, Inc., 348 F.3d 496, 505 (6th Cir. 2003) (quoting Delman v. Cleveland

Hts., 41 Ohio St.3d 1, 4, 534 N.E.2d 835, 838 (1989)). See also David A. Flynn, Inc. v. Gen.

Motors Acceptance Corp., 345 F. App’x 974, 977 (6th Cir. 2009). This definition tracks the

Restatement (Second) of Torts § 552(1).

In its briefing, Minit-Men argues that it is entitled to judgment because it was not in

privity with Versatile and Versatile was not a member of an identifiable class of persons whose

reliance upon Minit-Men’s representations was specifically foreseen. Because there is no privity

here, the latter issue regarding Versatile’s status becomes important. The Court notes that some

persuasive authority rejects the argument that there must be a “special relationship” between

Versatile and Minit-Men. See CCB Ohio LLC v. Chemque, Inc., 649 F. Supp. 2d 757, 767 (S.D.

Ohio 2009); ATM Exch., Inc. v. Visa Int’l Serv. Ass’n, No. 1:05-CV-00732, 2008 WL 3843530,

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at *15-16 (S.D. Ohio Aug. 14, 2008); In re Nat’l Century Fin. Enter., Inc., Inv. Litig., 580 F.

Supp. 2d 639, 647 (S.D. Ohio 2008); Nat’l Mulch & Seed, Inc. v. Rexius Forest By-Prods., Inc.,

No. 2:02-cv-1288, 2007 WL 894833, at * (S.D. Ohio Mar. 22, 2007). Consequently, the issue is

simply whether Minit-Men knew or foresaw that Versatile would reply on its representations. 

Minit-Men’s lack of specific knowledge of Versatile precludes the negligent

misrepresentation claim here. Similar to the task Minit-Men notes in briefing that it conducted,

this Court has searched for an analogous case. Both Minit-Men and this Court arrived at TransGulf Corp. v. Performance Aircraft Services, Inc., 82 S.W.3d 691 (Tex. Ct. App. 2002). In that

case, a purchaser of an airplane asserted negligent misrepresentation claim against companies

that had performed allegedly insufficient maintenance work on the airplane prior to the purchase. 

The elements of the negligence misrepresentation claim involved in that case mirror Ohio law. 

See id. at 696 (“The elements of a cause of action for negligent misrepresentation are: (1) the

representation is made by a defendant in the course of his business or in a transaction in which

he has a pecuniary interest; (2) the defendant supplies “false information” for the guidance of

others in their business; (3) the defendant did not exercise reasonable care or competence in

obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by

justifiably relying on the representation.”). The plaintiff could not satisfy these elements

because it could not establish that it fell within the limited class of persons able to assert such a

claim.

The Trans-Gulf Corp. court explained its rationale as follows:

[Defendants] contend that [Plaintiff] is not a party entitled to assert a claim

for negligent misrepresentation with respect to the misrepresentations which were

purportedly made. As noted in McCamish, Martin, Brown & Loeffler v. F.E. Appling

Interests, 991 S.W.2d 787, 794 (Tex. 1999), the class of claimants who can assert a

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negligent misrepresentation claim is limited. Under Restatement (Second) of Torts

§ 552(2) (1977), liability is limited to loss suffered:

(a) by the person or one of a limited group of persons for whose

benefit and guidance [one] intends to supply the information or

knows that the recipient intends to supply it; and (b) through reliance

upon it in a transaction that [one] intends the information to influence

or knows that the recipient so intends or in a substantially similar

transaction.

In interpreting Section 552(2), the court in McCamish stated that a negligent

misrepresentation cause of action is available only when information is transferred

to a known party for a known purpose.

The record establishes that [Defendants’] work on the fuel tanks took place

prior to [Plaintiff’s] purchase of the aircraft. There is no evidence that [Plaintiff] was

a party known by [Defendants] at the time the repair work was performed or that

[Defendants] knew the information would be subsequently supplied to [Plaintiff]. 

While one might argue that [Defendants] should have assumed that a subsequent

owner of the aircraft might rely on their repair records, the Restatement requires

actual knowledge of the recipient’s identity and a specific intent on the part of the

alleged tortfeasor that the claimant would rely on the misrepresentation. We,

therefore, agree with [Defendants’] contentions that [Plaintiff] is not within the

limited group of persons who can assert a claim for negligent misrepresentation.

Id.7

 Because Ohio has also adopted Section 552(2), the Court finds that the reasoning of Trans7

 See also In re Diet Drugs (Phentermine/Fenfluramine/Dexenfluramine) Prods. Liab.

Litig., No. Civ.A. 03–20546, Civ.A. 03–20811, Civ.A. 03–20791, Civ.A. 03–20756, Civ.A.

03–20774, Civ.A. 03–20778, Civ.A. 03–20632, Civ.A. 03–20660, Civ.A. 03–20372, Civ.A.

04–20009, Civ.A. 03–20653, Civ.A. 03–20831, Civ.A. 03–20649, Civ.A. 03–20784, Civ.A.

020796, Civ.A. 03–20561, Civ.A. 03–20571, Civ.A. 03–20789, Civ.A. 03–20431, Civ.A.

03–20502, Civ.A. 03–20386, Civ.A. 03–20779, Civ.A. 03–20771, Civ.A. 03–20646, Civ.A.

03–20810, Civ.A. 03–20806, Civ.A. 03–20420, Civ.A. 03–20072, Civ.A. 03–20781, Civ.A.

03–20037, Civ.A. 03–20790, Civ.A. 03–20382, Civ.A. 03–20075, Civ.A. 03–20652, Civ.A.

03–20505, Civ.A. 03–20795, Civ.A. 03–20760, Civ.A. 03–20759, Civ.A. 03–20800, Civ.A.

03–20793, Civ.A. 03–20777, Civ.A. 03–20650, Civ.A. 04–20007, Civ.A. 03–20422, Civ.A.

03–20658, Civ.A. 03–20648, Civ.A. 03–20514, Civ.A. 03–20786, Civ.A. 04–20068, Civ.A.

03–20792, Civ.A. 03–20663, Civ.A. 03–20301, Civ.A. 03–20387, Civ.A. 03–20395, Civ.A.

04–20077, Civ.A. 03–20803, Civ.A. 03–20657, Civ.A. 04–20067, Civ.A. 03–20636, Civ.A.

03–20773, Civ.A. 04–20064, Civ.A. 03–20525, Civ.A. 04–20166, Civ.A. 03–20371, Civ.A.

03–20554, Civ.A. 03–20642, Civ.A. 03–20637, Civ.A. 03–20501, Civ.A. 03–20544, Civ.A.

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Gulf Corp. informs the instant case. See Russell v. City of Northwood, No. WD-97-050, 1998

WL 102137, at *4 (Ohio 6th Dist. Ct. App. Feb. 27, 1998) (invoking Section 552(2)).

There is simply no evidence before this Court suggesting that Minit-Men knew of

Versatile when it made its representations. Although there is some evidence that Versatile’s

president spoke with a Minit-Men mechanic the day Versatile took possession from the

helicopter from Columbus, there is no testimony that they discussed the airworthiness of the

specific helicopter involved. Versatile’s president in fact could not say that he and the mechanic

talked about anything other than things generally. This does not create a genuine dispute of

material fact as to whether Versatile falls within a limited category of entities that Minit-Men

could have foreseen as relying on its earlier representations. Versatile does not.8

The Court recognizes that although at least one Ohio case might not track the foregoing

03–20639, Civ.A. 03–20574, Civ.A. 03–20567, Civ.A. 03–20820, Civ.A. 03–20829, Civ.A.

03–20644, Civ.A. 03–20076, Civ.A. 03–20801, Civ.A. 03–20799, Civ.A. 03–20563, Civ.A.

03–20423, Civ.A. 03–20775, Civ.A. 03–20659, Civ.A. 03–20769, Civ.A. 03–20383, Civ.A.

03–20798, Civ.A. 03–20643, Civ.A. 03–20654, Civ.A. 03–20827, Civ.A. 03–20604, Civ.A.

03–20503, Civ.A. 03–20807, Civ.A. 03–20506, Civ.A. 03–20804, Civ.A. 03–20808, Civ.A.

03–20770, Civ.A. 03–20638, Civ.A. 03–20828, Civ.A. 03–20507, Civ.A. 03–20783, Civ.A.

03–20576, Civ.A. 03–20634, Civ.A. 03–20655, Civ.A. 03–20797, Civ.A. 03–20809, Civ.A.

03–20568, Civ.A. 03–20645, Civ.A. 03–20640, Civ.A. 03–20768, Civ.A. 03–20578, Civ.A.

03–20066, Civ.A. 03–20596, Civ.A. 03–20782, Civ.A. 03–20830, Civ.A. 03–20662, Civ.A.

03–20761, Civ.A. 04–20071, Civ.A. 03–20570, Civ.A. 03–20832, Civ.A. 03–20661, Civ.A.

03–20776, Civ.A. 04–20079, Civ.A. 03–20573, Civ.A. 03–20772, Civ.A. 03–20788, Civ.A.

03–20787, Civ.A. 04–20074, Civ.A. 03–20633, Civ.A. 03–20785, Civ.A. 03–20433, Civ.A.

03–20569, Civ.A. 03–20647, Civ.A. 03–20373, Civ.A. 03–20805, Civ.A. 03–20577, Civ.A.

03–20421, Civ.A. 04–20010, Civ.A. 03–20656, Civ.A. 03–20822, Civ.A. 03–20794, Civ.A.

03–20521, Civ.A. 03–20418, Civ.A. 03–20575, Civ.A. 03–20380, Civ.A. 03–20802, & Civ.A.

03–20780, 2004 WL 1535828, at *10 (E.D. Pa. July 6, 2004). 

8

 Today’s result is also in line with one Ohio court’s most recent treatment of the tort of

negligent misrepresentation. In Middlefield Banking Co. v. Deeb, No. 2011-G-3007, 2012 WL

2874893 (Ohio 11th Dist. Ct. App. July 16, 2012), a state court of appeals noted that the tort was

never intended to have extensive application. Id. at *6. 

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rationale fully, the result would be the same. In United States Bank v. Amir, No. 97438, 2012

WL 2355620 (Ohio 8th Dist. Ct. App. June 21, 2012), an Ohio court of appeals noted that

another court had “found that an appraiser preparing a report for a lending institution should

foresee that the purchaser of the property listed on the appraisal form could be within the limited

class of persons who would rely on the appraisal.” Id. at *6 (internal quotation marks omitted). 

The negligent misrepresentation claim nonetheless failed, however, because the content of the

appraisal was not read by the party claiming reliance until after that party had entered into the

sales agreement. Assuming arguendo that the court of appeals meant that only the property was

listed on the appraisal form (as opposed to listing the specific purchaser) so as to call into

question the specific-recipient rationale relied upon above, there is still no evidence that

Versatile reviewed the log books until after signing the sales agreement. 

Given the foregoing, Minit-Men is entitled to summary judgment on the negligent

misrepresentation component of Count III.9

 Having reached this conclusion on the grounds

addressed herein, the Court need not and does not address Minit-Men’s alternative grounds for

obtaining judgment.

Minit-Men also seeks summary judgment on the intentional misrepresentation component

of Count III. Under Ohio law, this component requires a plaintiff such as Versatile to establish 

9

 Neither Minit-Men nor Versatile contend that Versatile has asserted its negligent

misrepresentation claim under Oklahoma law, but given the issues discussed supra, the Court

notes that “[t]he Oklahoma Supreme Court has not expressly recognized the tort of negligent

misrepresentation” as a distinct tort, at least outside the banking context. Southcrest, L.L.C. v.

Bovis Lend Lease, Inc., 2011 WL 3881495, at *5 (N.D. Okl. Sept. 2, 2011). Some Oklahoma

courts have relied on Section 552 of the Restatement in characterizing any negligent

misrepresentation tort. See id. at *5-6. If Oklahoma law were to apply to Count III, judgment

for Minit-Men would still be warranted.

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(a) a representation or, where there is a duty to disclose, concealment of a fact, (b)

which is material to the transaction at hand, (c) made falsely, with knowledge of its

falsity, or with such utter disregard and recklessness as to whether it is true or false

that knowledge may be inferred, (d) with the intent of misleading another into

relying upon it, (e) justifiable reliance upon the representation or concealment, and

(f) a resulting injury proximately caused by the reliance.

Andersons, Inc., 348 F.3d at 505 (quoting Carpenter v. Scherer-Mountain Ins. Agency, 135 Ohio

App.3d 316, 327, 733 N.E.2d at1196, 1204 (Ohio Ct. App. 1999)). See also Burr v. Stark Cnty.

Bd. of Comm’rs, 23 Ohio St.3d 69, 491 N.E.2d 1101, 1102 (1986). 

Minit-Men argues that Versatile cannot satisfy its burden because there is no evidence

that Minit-Men acted with the intent of misleading another into relying upon the targeted

representations regarding airworthiness. In its memorandum in support of the summary

judgment motion, Minit-Men in fact asserts that Versatile “will not be able to cite to any

evidence or documents in the Memorandum in Opposition to this Motion which satisfy the intent

element.” (ECF No. 62, at 16.) The memorandum in opposition subsequently made this boast

prophetic. Versatile has failed to direct this Court to any evidence that informs the intent

element. In the absence of any such evidence, Minit-Men is correct that it is entitled to summary

judgment on an Ohio law intentional misrepresentation component of Count III.10 The Court

therefore GRANTS the motion for summary judgment on Count III. 

III. Conclusion

For the foregoing reasons, the Court GRANTS the as-construed motion to drop the

10 Neither Minit-Men nor Versatile contend that Versatile has asserted its intentional

misrepresentation claim under Oklahoma law, but given the issues discussed supra, the Court

notes that Oklahoma does not recognize intentional misrepresentation as a separate claim. See

Dobbs, 2012 WL 975733, at *3; Nichol, 144 P.3d at 910. If Oklahoma law were to apply to

Count III, judgment for Minit-Men would still be warranted.

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Police from this litigation (ECF No. 63) made by Versatile, GRANTS IN PART and DENIES

IN PART the motion for summary judgment (ECF No. 60) filed by Columbus, and GRANTS

the motion for summary judgment (ECF No. 62) filed by Minit-Men. Only Counts I and II

remain pending against Columbus.

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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